The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Tuesday's New Hampshire Supreme Court decision in City of Keene v. Cleaveland (paragraph breaks added):
The following facts are drawn from the City's pleadings, or were adduced at the evidentiary hearing. The City [of Keene] employs PEOs [parking enforcement officers] to enforce motor vehicle parking laws and regulations in Keene. The PEOs patrol downtown Keene on foot and in marked vehicles, monitoring parking meters and issuing parking tickets.
In December 2012, the respondents began protesting parking enforcement in Keene. On an almost daily basis, the respondents followed closely behind the PEOs, identifying expired parking meters and filling the meter before a PEO could issue a ticket, a process referred to by the respondents as a "save." When the respondents "save" a vehicle, they leave a card on the vehicle's windshield that reads: "Your meter expired! However, we saved you from the king's tariff!" The respondents also: videotaped the PEOs from a close proximity; called the PEOs names such as "f* * * * *g thief," "coward," "racist," and "b* * *h"; criticized the PEOs for issuing tickets; encouraged the PEOs to quit their jobs; and waited for the PEOs during their breaks, including waiting outside restrooms.
The respondents testified that they engage in these activities to protest parking enforcement because they believe that parking is not a criminal act, and that parking tickets are a "threat against [the] people." The PEOs testified that they repeatedly asked the respondents to stop their activities, complained to the Keene police department, and reported the respondents' activities to the city attorney.
In 2013, the City petitioned for preliminary and permanent injunctive relief, alleging tortious interference with contractual relations and civil conspiracy to commit tortious interference. The City asserted that the respondents, acting individually and in concert, tortiously interfered with the City's contractual relations with the PEOs by engaging in persistent and ongoing efforts to prevent them from performing their official duties, thus creating a hostile work environment for the PEOs. The City sought to enjoin the "Respondents, or anyone under their direction, supervision, employment, or control" from "coming within," "video recording," or "communicating with any PEO" within "a safety zone of fifty (50) feet of any PEO while that PEO is on duty performing his or her employment duties as required by the City of Keene." The City did not seek to prevent the respondents from filling meters. The petition contained the following statement:
[The City] does not seek an Order to prevent Respondents from exercising their constitutional rights to video record the PEOs from a comfortable remove or otherwise to express their opinion; rather, [the City] seeks only to prevent Respondents from taunting, interfering with, harassing, and intimidating the PEOs by establishing a safety zone between the PEOs and [the] Respondents while the PEOs are performing their duties.
… The PEOs testified that the close proximity of the respondents—sometimes only a foot away from them—caused the PEOs anxiety and made them feel harassed. One PEO testified that he was sometimes followed on his patrols by two or three of the respondents at the same time, and that they followed him so closely that if he turned around, they would bump into him. He ultimately resigned because "the constant harassment and intimidation [had] started to boil over into [his] personal life and [his] time off," and he felt he was "backed into a corner."
Another PEO testified that she is "tense and uptight all the time" because of the "awful anticipation" of "waiting for [the respondents] to show up," and claimed that she is unable to do her job because she is "trying to avoid [the respondents]." A third, who complained that the respondents waited outside her car and followed her in and out of city buildings on her breaks, testified that she does not feel safe when the respondents follow her at work. She also testified that, on one occasion, one of the respondents grabbed her wrist when she attempted to remove one of the respondents' cards from a car windshield. She has changed her work schedule to avoid the respondents, and has considered quitting her job.
The City also offered testimony about the risk to public safety: specifically, that the respondents distract the PEOs as they drive on city streets, and that the respondents "dart[ ] across" the street, which the City asserted could result in pedestrian injuries or vehicle collisions.
The trial court rejected the damages claim, and the New Hampshire Supreme Court agreed:
As the Supreme Court has observed, "the presence of activity protected by the First Amendment imposes restraints on the grounds that may give rise to damages liability." NAACP v. Claiborne Hardware Co., 458 U.S. 886, 916-17 (1982). For instance, the First Amendment protects the right of individuals to engage in public protest for the purpose of influencing societal or governmental change, even if that protest activity causes economic harm. Further, "[w]hile the State legitimately may impose damages for the consequences of violent conduct, it may not award compensation for the consequences of nonviolent, protected activity." The First Amendment is implicated because the mere threat of tort liability for engaging in protected activity may undermine "the free and robust debate of public issues," and "pose the risk of a reaction of self-censorship on matters of public import."
In Claiborne Hardware Co., a group of merchants sought damages in tort for malicious interference with their businesses—a tort analogous to the tortious interference claim made in this case—after civil rights activists organized a boycott of their businesses. The protesters engaged in a pattern of "intimidation, threats, social ostracism, [and] vilification" of potential black customers to discourage them from patronizing the boycotted establishments. Some of the protesters committed violent acts. The Supreme Court concluded that the "use of speeches, marches, and threats of social ostracism cannot provide the basis for a damages award." See also Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971) (allowing organization to hand out leaflets about "practices [that] were offensive to them" because "so long as the means are peaceful, the communication need not meet standards of acceptability"). The Court further held that although violent conduct "is beyond the pale of constitutional protection," because violence did not "color the entire collective effort," the protesters' non-violent activity was constitutionally protected and not subject to tort liability.
Here, the challenged conduct, like the respondents' protected speech, is intended to draw attention to the City's parking enforcement operations and to persuade the PEOs to leave their positions. There is no allegation that the challenged conduct involves violent conduct. Moreover, conduct "does not lose its protected character … simply because it may embarrass others or coerce them into action." We hold, therefore, that the First Amendment shields the respondents from tort liability for the challenged conduct….
The New Hampshire Supreme Court did conclude, however, that the trial court should consider the city's requests for an injunction (which the city had narrowed since it filed the original lawsuit), if the court could craft a content-neutral restriction that wouldn't markedly interfere with free speech rights (paragraph break added):
In light of the City's allegations that the challenged conduct threatens the safety of the PEOs, pedestrians, and the motoring public, and given the testimony of the PEOs at the hearing, we hold that the trial court erred when it failed to consider the particular factual circumstances of the case and whether an injunction should issue based upon the governmental and policy interests asserted by the City…. [We] remand for the trial court to address the issue of whether the governmental interests and factual circumstances asserted by the City in its petition are sufficient to warrant properly tailored injunctive relief.
"Even protected speech is not equally permissible in all places and at all times." The respondents' choice of where and when to engage in the challenged conduct "is not beyond the Government's regulatory reach—it is subject to reasonable time, place, or manner restrictions." We note that content-neutral injunctions that restrict speech or expressive activities must "burden no more speech than necessary to serve a significant government interest" to survive a First Amendment challenge.
We express no opinion as to whether the City's allegations, if proven, are sufficient to warrant the trial court's exercise of its equitable power, or as to whether the particular injunctive relief requested by the City would violate the Federal or State Constitutions. Those are issues for the trial court to address in the first instance.
I look forward to seeing what the trial court decides as to the injunction.